IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120001680 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart (PH) and, in effect, an upgrade of his Army Commendation Medal (ARCOM) to the Silver Star.

2.  The applicant states by regulation he deserves the PH.  He further states that he suffers from Post-Traumatic Stress Disorder (PTSD), and for a long time he did not want anything to do with the military.  The applicant also states, in effect, his combat actions on 29 July 1968 warrant consideration for an upgrade of his ARCOM to a Silver Star.

3.  The applicant provides the following:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Results History (medical document)
* VA Rating Decision
* ARCOM Citation and General Orders Number 6410
* Combat Infantryman Badge orders 
* Excerpts from Virtualwall.org website 




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents submitted by him for the Board to conduct a fair and impartial review of this case.

3.  Based upon his application, it does not appear the applicant was recommended for or awarded the Silver Star.

	a.  The governing law and regulations place time limitations on submission of award recommendations.  Absent any evidence of record or independent evidence provided by the applicant that shows he was recommended for or awarded the Silver Star the proper authority, his request exceeds these statutory and regulatory time limitations.

	b.  However, Title 10, U.S. Code, section 1130, allows the Service Secretary concerned to review a proposal for the award of or upgrading of a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10, U.S. Code, section 1130, he must submit a DA Form 638 (Recommendation for Award).  The DA Form 638 should clearly identify his unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which he is requesting recognition must accompany the DA Form 638.  In addition, his award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	c.  Title 10, U.S. Code, section 1130, also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.  Therefore, he must submit his request through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command (HRC), ATTN:  SGS, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	d.  If the applicant chooses to pursue the Silver Star by submitting a request under the provisions of Title 10, U.S. Code, section 1130, and his request is subsequently denied by HRC, he may reapply to the ABCMR.  Therefore, award of the Silver Star will not be discussed further in this Record of Proceedings.

4.  The applicant's DD Form 214 shows he was inducted into the Army of the United States on 5 January 1968 and he held military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice).  The highest grade/rank he attained during his tenure of service was specialist four/E-4.

5.  On 19 December 1969, the applicant was honorably released from active duty after completing 1 year, 11 months, and 18 days of total active service.  His DD Form 214 shows the following awards:

* Combat Infantryman Badge
* ARCOM
* Air Medal with 4 Oak Leaf Clusters
* National Defense Service Medal
* Vietnam Campaign Medal
* Vietnam Service Medal
* 2 Overseas Service Bars

6.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing fails to show the applicant's name as a casualty.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the PH pertaining to the applicant.

7.  The applicant provides a statement which outlines the actions he performed on the morning of 29 July 1968 when his unit, Company C, 2nd Battalion, 
12th Cavalry (Airmobile), 1st Cavalry Division sustained hostile fire while moving down a hill in the jungle in Vietnam. 
   
8.  The applicant submitted a copy of a Medical Results History Report, dated 
30 May 2008, which indicated his left ankle had soft tissue swelling at the level of the ankle mortise medially, radiopaque foreign body in the calf medial to the tibia, a small plantar calcaneal spur, and there was no fracture involving the base of the 5th metatarsal.

9.  The applicant submitted a copy of a VA Rating Decision, dated 31 October 2008, which indicates he is subject to 10 percent compensation for a service connected shrapnel wound in the left calf with retained foreign body.

10.  The applicant submitted an ARCOM Citation and General Orders Number 6410, dated 23 May 1969, which awarded him the ARCOM for meritorious service in connection with military operations against hostile forces in the Republic of Vietnam (RVN) during the period June 1968 to June 1969.

11.  The applicant submitted a copy of Special Orders Number 273, dated 
29 September 1968, which show he was awarded the Combat Infantryman Badge for performing duty with Company C, 2nd Battalion, 12th Cavalry (Airmobile), 1st Cavalry Division.

12.  The applicant submitted excerpts from the Virtualwall.org website regarding the events that occurred with Company C, 2nd Battalion, 12th Cavalry of the 1st Cavalry Division on 29 July 1968.  These excerpts provide the details of the hostile fire the unit sustained including the names of the Soldiers killed.

13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to be awarded the PH has been carefully considered. However, there is insufficient evidence to support this claim.

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a direct result of or caused by enemy action.  In this case, there is no evidence of record confirming he was injured as a result of enemy action.  

3.  Further, the applicant’s name is not listed on the Vietnam Casualty Roster.  As a result, absent evidence the injury received by the applicant was the result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied.  

4.  The applicant and all others concerned should know this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120001680



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ABCMR Record of Proceedings (cont)                                         AR20120001680



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